Environmental Alert
(by Robert Stonestreet)
On August 5, 2020, the United States Fish and Wildlife Service (Service) published a proposed regulation in the Federal Register to define the term “habitat” for purposes of the Endangered Species Act (ESA). 85 FR 47333. The ESA already defines the term “critical habitat,” which in general means areas designated as essential to preserve or promote recovery of threatened or endangered species regardless of whether those species are actually present in the area. The term “habitat,” however, is not itself defined in the ESA or existing regulations. The Service has been involved in years of litigation over efforts to designate as “critical habitat” certain areas where the listed species do not presently exist and could not survive under current conditions. This proposed definition of “habitat” follows a ruling by the United States Supreme Court that an area must first qualify as “habitat” for a listed species in order for the area to be designated as “critical habitat.” Weyerhaeuser Co. v. United States Fish and Wildlife Service, 139 S. Ct. 361 (2018).
The Service proposes to define “habitat” as follows:
The physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species. (emphasis added)
The Service also requests comments on the following alternative definition of “habitat”:
The physical places that individuals of a species use to carry out one or more life processes. Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exist. (emphasis added)
Both of these regulatory definitions would narrow the scope of “critical habitat” designations from how the Service has previously interpreted that term. For example, Weyerhaeuser addressed a rulemaking by the Service that designated as “critical habitat” areas where the listed species at issue once lived, but could not survive under present conditions unless changes were made to certain physical features. The owner of the land designated as “critical habitat” challenged that designation as exceeding the scope of the ESA. Under either of the proposed definitions, areas where a listed species could not presently survive would not seem to qualify as “habitat,” and thus could not be designated as “critical habitat.”
Comments on the proposed regulation are due by September 4, 2020 and may be submitted at www.regulations.gov under Docket No. FWS-HQ-ES-2020-0047.
If you have any questions about the proposed regulation, or the Endangered Species Act in general, please contact Robert M. Stonestreet at rstonestreet@babstcalland.com or 681.265.1364.